68 N.Y.S. 269 | N.Y. App. Div. | 1901
This is an appeal from the judgment of the Municipal Court dismissing on the merits proceedings to remove the defendant from certain real property situate on Columbia and Bowen streets in the borough of Brooklyn, of dimensions defined by 191 feet, 232 feet, 85 feet and 113 feet, respectively. It is stipulated in this case that the plaintiff is the owner and holder of the record title. of the premises in dispute. Though plaintiff did not actually occupy the land, if she have the legal title, she. is constructively in possession unless the premises are in the actual hostile possession of another under a claim of title. (Bliss v. Johnson, 94 N. Y. 235.) The defendant resists under claim of title as an occupant, and such claim requires our consideration of an alleged deed. An occupant claiming upon a written instrument is deemed to hold the premises adversely if he entered into possession under claim of title exclusive of any
Without expressing any opinion that the testimony justified any further inference, it is perhaps considerate to .conjecture that the
If the defendant’s case be considered ao not founded upon a written instrument it must fail also. It must be shown that the possession was hostile in its inception. (Knolls v. Barnhart, 71 N. Y. 474, 479 ; Jackson v. Parker, 3 Johns. Cas. 124; Sedg. & Wait Tr. Title Land, §§ 730, 750.) Nothing shows this. So far as the history of the occupancy is concerned it appears from the defendant’s testimony that his mother and' after her the defendant lived in.the houses successively for more than forty years. In weighing the fact upon the question of adverse possession, we “ should keep in mind the character of the property and discover, if practicable, the object of owning it, by the uses to which it would ordinarily be applied; that we may the better understand not only the mind with which it was possessed, but, on the other side, the mind with which the possession, such as it was, was acquiesced'in.” (Corning v. Troy Iron & Nail Factory, 44 N. Y. 577.) We are apprised that this was realty situate in a city, at the junction of city streets, lying vacant and unimproved for many years, and in the possession of executors and trustees. There are. scores or hundreds of similar lots of land in our cities which ar.e held vacant and unimproved until the growth
To hold that one who is in occupancy under the. circumstances of this case, weighted, as he is, with the presumption that his occupation is in subordination, can establish adverse possession by mere lapse of years, would be to go too far, in the absence of all proof of actual, open, notorious, continued or exclusive acts, or of any claims continually asserted and maintained that such possession was hostile to the title of the plaintiff. There is testimony to the effect that there was for the period of a few years a fence put about this house for the purpose oftaking care of stuff there,” but the fence went to feed a bonfire on election night, and it was not replaced. But this temporary act for such purpose is not enough to establish a substantial inclosure of the land or of any part thereof as proof of an adverse- possession. (Cleveland v. Crawford, 7 Hun, 616, 622.) Steeley, the plaintiff’s agent, testified that he took charge of the property twelve or thirteen years ago, and that when he went to the various tenants for rentals he called upon Isabella Burns, who said she had no money for rent, and referred him to her daughter, who was her support. He returned to Mrs. Burns, who said she was “ a pretty old lady now and pretty feeble, * * * and it would not be worth your while * * * to put me out.” She died, and thereafter, about six years ago, Steeley went to the defendant who was in the house, and told him he would, have to pay rent or move, and defendant said he had no rent. He was permitted to remain until last year, when he was again asked to pay rent. ■ He said: “ I can’t pay no rent. I got no position to pay rent. What am I going to do? * * * If I had a steady- job, had a place to go, I would leave the place and get out.” If he got ten dollars, “ he would
. The learned counsel for the respondent insists that the disposition of the proceeding was right, for the reason that the plaintiff omitted to prove the service of the notice required by section 2236 of the Code of Civil Procedure. But the defendant appeared generally, joined issue and went to a hearing on the merits, and made no motion at any time based upon the alleged defect. He thus waived the- jurisdictional defect, and even if it were necessary for the plaintiff to prove such service as part of his case, the defendant cannot first avail himself of the point upon this appeal. (McNish v. Village of Peekskill, 91 Hun, 324, 326; Haines v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 235, 238; Flandrow v. Hammond, 148 id. 129, 135.)
The judgment of the Municipal Court must be reversed and a new trial ordered, with costs to abide the event.
All concurred, except Sewell, J., taking no part.
Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.